Stewart v. Midwestern Indemnity Co.

Douglas, J.,

dissenting. I respectfully dissent. I do so because my fear that this court, in writing in the field of “final appealable orders,” might add further confusion rather than clarification to the already confusing jumble of final-appealable-order jurisprudence, is fast becoming a reality. For trial judges, and especially judges of the courts of appeals who have to deal with *128 such issues on a daily basis, our decision today will be of little help.

I agree with the majority that the order in question does not meet the first prong of R.C. 2505.02. The order of the trial court certainly does not determine the action between these parties and prevent a judgment. But that is not the end of R.C. 2505.02. The trial court’s order clearly affects a “substantial right” of appellants and was, without question, made in a “special proceeding.” Pursuant to the second prong of R.C. 2505.02, this makes the order final and thus ap-pealable.

Arguably, even the third prong of R.C. 2505.02 is met. A “judgment” of an arbitration panel is vacated by the trial court. While generally we consider “judgments” only emanating from courts, we nevertheless see decisions equating to judgments from many administrative boards and panels. While I concede that this is a weaker argument, we still should consider all the facets of R.C. 2505.02.

Finally, I am concerned about a portion of Justice Wright’s dissent. While I agree, as earlier indicated, that the second prong of R.C. 2505.02 is met in this case and thus the trial court’s order is final and appealable, I do not agree with his discussion of a “special proceeding.” A special proceeding is an action not recognized at common law or part of our standard civil practice. It is one that has been brought about by specific legislation which creates a special type of action. Examples would be forcible entry and detainer, declaratory judgment, appropriation or, as in this case, arbitration. The term has nothing to do, in my judgment, with the test, set forth today by Justice Wright, from Amato v. General Motors Corp. (1981), 67 Ohio St. 2d 253 , 21 O.O. 3d 158, 423 N.E. 2d 452 . The need for immediate review, waste of judicial resources or orderly disposition of litigation does not make a proceeding “special.” Rather, in determining what is a “special proceeding,” we should consider the litany set forth in Civ. R. 1(C), and especially consider subsection (7) of that rule.

Accordingly, since I believe the order appealed from is final and thus appealable, I respectfully dissent.